A, is married to a man - here called F, who is a citizen of Eritrea. He was granted refugee status permanent and residence permit in September 2014 as of chapter 4, sections 1 and 3 of the Aliens Act [Utlänningslag [2005: 716])[1]. F. had provided information about his wife A. and their four children to the Migration Agency so they could apply for family reunification.

In May 2015, A and the children, all citizens of Eritrea, applied for residence permits as family to F. The Migration Agency decided in October 2016 to reject A.’s application. According to the Migration Agency, the reason for the decision was that A. did not have an Eritrean passport and could not be covered by the exception regulation because she had the opportunity to apply for a home country passport. The documents she had submitted in and the information she and her husband had given were not enough to not substantiate her identity. On the same day, the Migration Agency also rejected the children's applications on the grounds that the children's identities could not be validated, that they were underage and thus lacked the authority to submit their applications for residence permits themselves, and that A. had not made it probable that she was the parent and thus legal guardian of the children.

A appealed the decision to the Migration Court, and claimed that she and her children should be granted residence permits, and that a DNA analysis should be made to establish the relationship with F. In support for her and the children's cases, she stated the following. Since her husband F. had left Eritrea illegally, she and the children could not get passports or other identity documents from any Eritrean authority or embassy. F. was political refugee and an active opponent of Eritrea's government.

In February 2017, the Migration Court decided reject the appeal and the claim for DNA analysis for the following reasons. In order for a foreign national to be granted a residence permit due a a family reunification case, his/her identity must be be made probable. The identity is usually made probable by the applicant’s home country passport. From the available country information it appears to be possible to get an Eritrean passport, even for the person who has left the country illegally. A. has not tried to get an Eritrean passport for her and the children and F. has not indicated any reasons why A. cannot cross the border to Sudan or other countries. A. has thus not exhausted all opportunities to get homeland passports for herself and the children and should not be granted an exception from the strong requirement of verifiable identity.

A. and the children appealed the decision of the Migration Court to the Migration Court of Appeal.

The question in the case is whether A and the children can be granted residence permits in Sweden as the spouse and children of F., who has been granted permanent residence permit as refugee, even if they cannot substantiated their identities. In the case, therefore, the question also concerns whether A. and the children can be granted alleviation of evidentiary burden regarding their identities.

Outcome of the case:

The Migration Court of Appeal stated that A and F are married to each other and that they have previously lived in one household are stipulated facts. Furthermore, the Migration Agency now considered that the children’s parents were A and F and that they therefore could represent their children in the Migration Court of Appeal. Given these facts, the Court noted that A and the children were entitled to residence permits under chapter 5. cection 3 of the Aliens Act, provided that they can substantiate their identities. However, the Migration Court of Appeal stressed that caution must be observed in referring family members of a refugee to the authorities of the home country for the purpose of obtaining identity documents. An assessment must be made in each case. In the case of Eritrea, referring family members of a refugee in Sweden to turn to the authorities have such consequences for the persons involved and other relatives that it cannot be considered to be motivated by the society’s interests of controlling the identity of persons who enter the country. Therefore, the Migration Court of Appeal decided that A and the children should not be required to visit any Eritrean authority to apply for passports. Instead, they should be able to benefit from an alleviation of evidentiary burden regarding their identities. The case was referred back to the Migration Agency that will be responsible to carry out a DNA investigation.

The Commission announced in its communication of 3 April 2014 (COM [2014] 210 final) guidance to Member States regarding the application of the Family Reunification Directive (Communication from the Commission to the Council and the European Parliament, Guidelines for the application of Directive 2003/86 / EC on the right to family reunification). The Commission states the following. The Family Reunification Directive should be interpreted and applied in a manner consistent with the European Convention. Member States have some freedom to assess when appropriate and necessary to check family ties through interviews or other investigations, including DNA sampling. If it is particularly difficult or dangerous to receive travel documents and this may constitute a disproportionate risk or a practical obstacle to effectively exercising the right to family reunification, Member States are invited to weigh the particular circumstances of the case and the circumstances of the country of origin. The special situation of refugees makes it often impossible or dangerous for them or their family members to obtain official documents, or contact the country of origin's diplomatic missions or consular missions. Article 11 (2) explicitly states that a decision to refuse an application for non-exclusion may be based on the absence of written evidence and that in such cases Member States are required to take into account other evidence of family ties. Member States have a broad margin of action when they take due account of the relevant circumstances of the individual case. However, they are confined to the principles of Article 8 of the European Convention, Article 7 of the Charter of Fundamental Rights of the European Union concerning family protection and respect for family life and relevant case law of the European Court of Justice and the European Court of Justice